Briody v St Helens and Knowsley Area Health Authority
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE HALE,Lord Justice Judge,LORD JUSTICE JUDGE,LORD JUSTICE HENRY |
| Judgment Date | 29 June 2001 |
| Neutral Citation | [2001] EWCA Civ 1010 |
| Docket Number | Case No: A2/2000/2343 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 June 2001 |
[2001] EWCA Civ 1010
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Mrs Justice Ebsworth)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Henry
Lord Justice Judge and
Lady Justice Hale
Case No: A2/2000/2343
Stephen Irwin Esq, QC & Jonathan Glasson Esq (instructed by Freeth Cartwright for the Appellant)
Ms Sally Smith QC & Charles Feeny Esq (instructed by Hill Dickinson & Co for the Respondent)
Ms Briody claims £78,267 in damages from the defendant, whose negligence deprived her of her womb, in order that she may try to have two children through a surrogacy arrangement. In a reserved judgment handed down on 21 January 2000, Mrs Justice Ebsworth rejected this aspect of the claim, while awarding a substantial sum to compensate for her infertility and the deep sadness it had caused her. Ms Briody now appeals to this court. She also wishes to put before us new proposals which are different from those considered by Mrs Justice Ebsworth.
Facts
Ms Briody, who comes from a happy and close knit Roman Catholic family in St Helen's, first became pregnant at the age of 17. She married the father and that marriage endured until they separated in 1990. After an essentially normal pregnancy, she was admitted to hospital on 8 April 1972 expecting a normal birth. But there was a prolapsed cord and she had to have an emergency caesarian section. The baby could not be saved. She soon became pregnant again, and after another uneventful pregnancy, she was admitted to Whiston Hospital on 12 March 1973 for the birth. Despite the recent operation, it was decided to conduct a trial of labour. The caesarian scar ruptured. A sub-total hysterectomy was performed, leaving her ovaries intact. The baby's head had escaped into her abdomen and the baby had died. This was a terrible experience for a young woman who had always wanted children: the judge accepted that when she learnt what had happened "… her feelings were of devastation and loss and that she had a sense of sorrow and emptiness she could not readily express in words". The couple investigated adoption but were first told that she was too young and then that there were no babies available. Eventually they were approved as short term foster parents and during the 1980s they fostered 13 or more children.
Ms Briody consulted solicitors about another matter in about 1989. Her marriage was breaking up around this time. She decided to find out more about why her babies had died and she had lost her womb. These proceedings were begun in May 1992. She had first to overcome the hurdle that the damage had been done so long ago. The district judge declined to exercise his discretion under section 33 of the Limitation Act 1980 to disapply the limitation period in sections 11 and 14 of the 1980 Act. In September 1995 Mr Justice Ian Kennedy allowed her appeal and permitted the action to proceed. In 1996 the claim was amended to include a claim for the costs of surrogacy, but she had discussed the matter with her solicitor back in 199The trial on liability took place before Mr Justice Garland, who gave judgment in her favour on 24 April 1998. The defendant appealed, and also sought leave to appeal long out of time against Mr Justice Ian Kennedy's decision. Both the appeal and the application were dismissed by this Court on 21 April 1999. Thus it was that the assessment of damages came before Mrs Justice Ebsworth at the end of 1999, nearly 27 years after the relevant events, 10 years after the claim had first been notified to the defendant, and 8 years after it had begun. By that time Ms Briody was 46 years old: she was 48 last month.
Ms Briody had first approached a fertility service about surrogacy in mid 1997. The principal proposal before the judge was for "own egg" surrogacy, taking advantage of the fact that Ms Briody had lost her womb but not her ovaries. Her eggs would be recovered from her ovaries, fertilised with her partner's sperm, and the resulting embryos implanted in the womb of a surrogate mother. Ms Briody had first wanted to make the arrangement with a friend; that fell through and she reached an agreement with her sister; that too fell through; and she entered into an agreement with a surrogate in California, governed by Californian law.
Mrs Justice Ebsworth heard evidence from two well known fertility experts: Professor Craft, who was proposing the treat the claimant, and Professor Lord Winston for the defendant. Both took the view that the chances of success were minimal. Professor Craft put them at one per cent: he had repeatedly advised Ms Briody and her solicitors that failure was "almost inevitable". Lord Winston put them at much less than one per cent, because at the claimant's age it was unlikely that they would be able to recover viable eggs or produce a child with them. The discovery of ovarian cysts made it even more unlikely. There was also the problem that Ms Briody's partner, Mr Hill, had sub-optimal sperm. It was proposed therefore to use ICSI (injecting a single sperm into the egg). This has a high chance of success: Professor Craft's view was that only three per cent of eggs fail to be fertilised. Lord Winston's view was that with older women failures of fertilisation and proper embryonic development were much more common. The judge was not invited to resolve the factual dispute between the experts because on any view the chances of success using Ms Briody's own eggs were so low that it would not affect the principle.
It is clear from the judgment and from the evidence that there was also consideration of a surrogacy using "donor" eggs, usually those of the surrogate herself. Indeed, the claim was made on the basis that there should be two cycles of treatment using Ms Briody's eggs, which it was accepted would probably fail, and then four cycles using donor eggs. Although the judge made no detailed findings about it, the evidence was that the chances of success were a great deal higher. Even with Mr Hill's sub-optimal sperm, ICSI has a high success rate, and presumably the chances of success with the surrogate's eggs would be no different from her chances of success with IVF generally, which would depend upon her own age, health and other relevant characteristics.
The judge rejected the "own egg" proposal as unreasonable, partly because the chances of success were so low, and partly because the Californian surrogacy agreement would not be possible here:
"On any view of our law the Claimant seeks an award of damages to acquire a child by methods which do not comply with that law; that seems to me to be wrong …. It is one thing for a court retrospectively to sanction breaches of statute in the paramount interests of an existing child, it is quite another to award damages to enable such an unenforceable and unlawful contract to be entered into."
She also rejected the "donor egg" proposal because it did not confront this latter problem. Having reached this conclusion on the proposals presented to her, it is scarcely surprising that she did not consider whether there were other reasons to reject the "donor egg" option.
She expressly confined her decision to the "quite exceptional" facts of this case:
"It is possible to foresee a case in which a young married woman has been rendered incapable of bearing a child brings a case whilst still young and within the ambit of our law. That is not this case and I deliberately confine my decision to this case of proposed commercial surrogacy."
In this court, however, the defendant invites us to remove that limitation and hold that damages for surrogacy are never recoverable.
New evidence
Ms Briody seeks to put additional evidence before this court. We have not determined whether or not to admit it but we have of course looked at it. There have been two significant developments since the trial. First, eggs have been recovered from Ms Briody and successfully fertilised with Mr Hill's sperm. There are now six of their embryos in storage. It might be thought that this puts an entirely different complexion on the matter, but it is common ground that it does not. The chances of a successful pregnancy and birth being achieved with Ms Briody's eggs are still only one per cent, although Lord Winston agrees that the successful fertilisation has brought them up to that figure. Second, Ms Briody has abandoned the Californian agreement and found a proposed surrogate through the self help group, COTS: Childlessness Overcome Through Surrogacy. The evidence at trial was that Ms Briody had considered using COTS, and that they had indicated a willingness to accept her despite her age in the unusual circumstances. She now preferred the Californian arrangement because of the level of contact and openness which COTS expect of their members. She now proposes two cycles of treatment using her own embryos and if that fails four more cycles of treatment using the surrogate's eggs, and a further three cycles of treatment to have a second child. The whole arrangement would be covered by English law.
English law on surrogacy
English law on surrogacy is quite clear:
a) Surrogacy arrangements are not unlawful, nor is the payment of money to a surrogate mother in return for her agreeing to carry and hand over the child.
b) The activities of commercial surrogacy agencies are unlawful. It is an offence for any person to take part in negotiating surrogacy arrangements on a commercial basis, ie for payment to himself or another (apart from the surrogate mother); for a body...
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